Disputing a Will

Have you been left out of a will? Or do you feel that a will doesn’t fairly provide for you? If so, you may have the legal right to contest the will. Strict time limits do apply, so it’s essential to get legal advice as soon as you can.

When a will can be challenged

You’ve been left out of the will or unfairly provided for – generally, a person may leave their assets to whomever they wish. However, the law recognises that there are those who relied on the deceased for support who can sometimes be unfairly left out of the deceased’s will and are therefore able to make a claim so that their needs are adequately provided for.

The will is not valid – the deceased did not have proper mental capacity when making the will, or if the will was made as a result of improper influence on the deceased.

The administrator was negligent – the executor or administrator of the estate does not administer it fairly, promptly and in accordance with the law.

Important to note, even if there is no formal will you are able to contest the distribution of an estate.

Who can challenge a will?

A deceased person’s spouse, child or dependent, who considers that adequate support has not been made for his or her proper maintenance and support, can contest a will. This includes:

the wife or husband of the deceased at the time of death;

a de-facto partner of the deceased at time of death;

a former legal spouse (must not be remarried and be receiving or entitled to maintenance OR be a parent of a minor child of deceased and dependent at the date of death);

a child of the deceased;

a step-child or adopted child of the deceased;

a dependent of the deceased who at the time of death was wholly or substantially maintained or supported by the deceased and either a parent of the deceased, parent of a child of the deceased or person under 18.

Timing considerations for disputing a will

The time limit in which to make a claim is within 9 months of the date of death, but the estate may be distributed 6 months after the date of death if there is no notice of any application or intended application for family provision. Therefore, if you intend to make a claim against an estate, you should give notice of your intention to file an application for provision or further provision within 6 months from the deceased’s date of death.

It is at the Court’s discretion whether to extend the time after 9 months if it is satisfied that sufficient cause can be shown.

This fact sheet is for information only. It is recommended that you get legal advice about your situation.

Why choose Doyle Wilson for your Estate Litigation?

We have much experience in complex estate dispute matters, including challenging a will (or defending it), claims for inadequate provision in a will, arguments about the mental capacity of the testator when making a will and when the deceased person died intestate.

We have a strong focus on dispute resolution, by negotiation or mediation where appropriate, therefore avoiding a formal court hearing. In our experience, many will disputes can be settled at or before mediation, minimising the costs to you and strain on family relationships.

When required, our lawyers work with specialist wills dispute barristers. This way you get a dedicated team of experts guiding and representing you throughout the entire process of resolving the question of your entitlement to an estate.

Contact one of our estate litigation lawyers on 07 4671 1266 for more information on how we can help you.